THE FEDERALIST PAPERS

No. XXXXIX:
Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention
For the Independent Journal
Saturday, February 2, 1788.
MADISON

To the People of the State of New York:

THE author of the "Notes on the State of Virginia," quoted in the last
paper, has subjoined to that valuable work the draught of a
constitution, which had been prepared in order to be laid before a
convention, expected to be called in 1783, by the legislature, for the
establishment of a constitution for that commonwealth. The plan, like
every thing from the same pen, marks a turn of thinking, original,
comprehensive, and accurate; and is the more worthy of attention as it
equally displays a fervent attachment to republican government and an
enlightened view of the dangerous propensities against which it ought to
be guarded. One of the precautions which he proposes, and on which he
appears ultimately to rely as a palladium to the weaker departments of
power against the invasions of the stronger, is perhaps altogether his
own, and as it immediately relates to the subject of our present
inquiry, ought not to be overlooked.

His proposition is, "that whenever any two of the three branches of
government shall concur in opinion, each by the voices of two thirds of
their whole number, that a convention is necessary for altering the
constitution, or CORRECTING BREACHES OF IT, a convention shall be called
for the purpose."

As the people are the only legitimate fountain of power, and it is from
them that the constitutional charter, under which the several branches
of government hold their power, is derived, it seems strictly consonant
to the republican theory, to recur to the same original authority, not
only whenever it may be necessary to enlarge, diminish, or new-model the
powers of the government, but also whenever any one of the departments
may commit encroachments on the chartered authorities of the others. The
several departments being perfectly co-ordinate by the terms of their
common commission, none of them, it is evident, can pretend to an
exclusive or superior right of settling the boundaries between their
respective powers; and how are the encroachments of the stronger to be
prevented, or the wrongs of the weaker to be redressed, without an
appeal to the people themselves, who, as the grantors of the
commissions, can alone declare its true meaning, and enforce its
observance?

There is certainly great force in this reasoning, and it must be allowed
to prove that a constitutional road to the decision of the people ought
to be marked out and kept open, for certain great and extraordinary
occasions. But there appear to be insuperable objections against the
proposed recurrence to the people, as a provision in all cases for
keeping the several departments of power within their constitutional
limits.

In the first place, the provision does not reach the case of a
combination of two of the departments against the third. If the
legislative authority, which possesses so many means of operating on the
motives of the other departments, should be able to gain to its interest
either of the others, or even one third of its members, the remaining
department could derive no advantage from its remedial provision. I do
not dwell, however, on this objection, because it may be thought to be
rather against the modification of the principle, than against the
principle itself.

In the next place, it may be considered as an objection inherent in the
principle, that as every appeal to the people would carry an implication
of some defect in the government, frequent appeals would, in a great
measure, deprive the government of that veneration which time bestows on
every thing, and without which perhaps the wisest and freest governments
would not possess the requisite stability. If it be true that all
governments rest on opinion, it is no less true that the strength of
opinion in each individual, and its practical influence on his conduct,
depend much on the number which he supposes to have entertained the same
opinion. The reason of man, like man himself, is timid and cautious when
left alone, and acquires firmness and confidence in proportion to the
number with which it is associated. When the examples which fortify
opinion are ANCIENT as well as NUMEROUS, they are known to have a double
effect. In a nation of philosophers, this consideration ought to be
disregarded. A reverence for the laws would be sufficiently inculcated
by the voice of an enlightened reason. But a nation of philosophers is
as little to be expected as the philosophical race of kings wished for
by Plato. And in every other nation, the most rational government will
not find it a superfluous advantage to have the prejudices of the
community on its side.

The danger of disturbing the public tranquillity by interesting too
strongly the public passions, is a still more serious objection against
a frequent reference of constitutional questions to the decision of the
whole society. Notwithstanding the success which has attended the
revisions of our established forms of government, and which does so much
honor to the virtue and intelligence of the people of America, it must
be confessed that the experiments are of too ticklish a nature to be
unnecessarily multiplied. We are to recollect that all the existing
constitutions were formed in the midst of a danger which repressed the
passions most unfriendly to order and concord; of an enthusiastic
confidence of the people in their patriotic leaders, which stifled the
ordinary diversity of opinions on great national questions; of a
universal ardor for new and opposite forms, produced by a universal
resentment and indignation against the ancient government; and whilst no
spirit of party connected with the changes to be made, or the abuses to
be reformed, could mingle its leaven in the operation. The future
situations in which we must expect to be usually placed, do not present
any equivalent security against the danger which is apprehended.

But the greatest objection of all is, that the decisions which would
probably result from such appeals would not answer the purpose of
maintaining the constitutional equilibrium of the government. We have
seen that the tendency of republican governments is to an aggrandizement
of the legislative at the expense of the other departments. The appeals
to the people, therefore, would usually be made by the executive and
judiciary departments. But whether made by one side or the other, would
each side enjoy equal advantages on the trial? Let us view their
different situations. The members of the executive and judiciary
departments are few in number, and can be personally known to a small
part only of the people. The latter, by the mode of their appointment,
as well as by the nature and permanency of it, are too far removed from
the people to share much in their prepossessions. The former are
generally the objects of jealousy, and their administration is always
liable to be discolored and rendered unpopular. The members of the
legislative department, on the other hand, are numberous. They are
distributed and dwell among the people at large. Their connections of
blood, of friendship, and of acquaintance embrace a great proportion of
the most influential part of the society. The nature of their public
trust implies a personal influence among the people, and that they are
more immediately the confidential guardians of the rights and liberties
of the people. With these advantages, it can hardly be supposed that the
adverse party would have an equal chance for a favorable issue.

But the legislative party would not only be able to plead their cause
most successfully with the people. They would probably be constituted
themselves the judges. The same influence which had gained them an
election into the legislature, would gain them a seat in the convention.
If this should not be the case with all, it would probably be the case
with many, and pretty certainly with those leading characters, on whom
every thing depends in such bodies. The convention, in short, would be
composed chiefly of men who had been, who actually were, or who expected
to be, members of the department whose conduct was arraigned. They would
consequently be parties to the very question to be decided by them.

It might, however, sometimes happen, that appeals would be made under
circumstances less adverse to the executive and judiciary departments.
The usurpations of the legislature might be so flagrant and so sudden,
as to admit of no specious coloring. A strong party among themselves
might take side with the other branches. The executive power might be in
the hands of a peculiar favorite of the people. In such a posture of
things, the public decision might be less swayed by prepossessions in
favor of the legislative party. But still it could never be expected to
turn on the true merits of the question. It would inevitably be
connected with the spirit of pre-existing parties, or of parties
springing out of the question itself. It would be connected with persons
of distinguished character and extensive influence in the community. It
would be pronounced by the very men who had been agents in, or opponents
of, the measures to which the decision would relate. The PASSIONS,
therefore, not the REASON, of the public would sit in judgment. But it
is the reason, alone, of the public, that ought to control and regulate
the government. The passions ought to be controlled and regulated by the
government.

We found in the last paper, that mere declarations in the written
constitution are not sufficient to restrain the several departments
within their legal rights. It appears in this, that occasional appeals
to the people would be neither a proper nor an effectual provision for
that purpose. How far the provisions of a different nature contained in
the plan above quoted might be adequate, I do not examine. Some of them
are unquestionably founded on sound political principles, and all of
them are framed with singular ingenuity and precision.